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May 2, 2003


The opinion of the court was delivered by: Thomas P. Griesa, United States District Judge


Plaintiff Anthony DiMaria claims that defendant First Unum Life Insurance Company wrongfully denied his claim for disability benefits. Plaintiff originally sued in Supreme Court, New York County. Defendant removed the case to federal court on the basis of federal question jurisdiction under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. Plaintiff moves to remand, asserting that the lawsuit does not implicate ERISA.

The motion to remand is denied.


The principal issue raised by plaintiff is whether it was he who established the employee benefit plan that is at issue in this case.

Plaintiff is a physician. During the relevant time period, plaintiff was a sole practitioner specializing in internal medicine. His practice employed one medical assistant.

Defendant is in the business of issuing group insurance policies. Defendant administers its policies through a form of internal trust. On April 15, 1994 plaintiff signed a form entitled "Application for Participation in the Select Group Insurance Trust." There is also a signature for the "Agent or Broker," but that signature is unintelligible. The application contained the following:

By this application, the Employer/Applicant:

1. agrees and accepts the terms of the Trust Agreement (including all amendments to the Trust Agreement) for the Insurance Trust named above for so long as it elects to participate in the Trust;
2. agrees to remit regularly the required premium payments; and
3. elects coverage as shown in the Summary of Benefits and agrees that only those provisions which appear in the Summary of Benefits provided to the Employer/Applicant apply to its insurance coverage.
The Trust Agreement states:
Each Plan Administrator shall maintain records for all employees in its Plan, in connection with their participation in Policies issued, and shall be solely responsible for complying with any provision of the Employee Retirement Income Security Act (ERISA) as it may be amended from time to time which may apply to their participation in this Trust Agreement.
The application refers to the Summary of Benefits as showing what coverage has been elected. However, election of coverage appears to have been accomplished through selections made on a "Mini-Plan Screening Checklist." The checklist identified plaintiffs medical practice as a sole proprietorship and plaintiff as the "Plan Administrator." Out of three alternative forms of benefits — long-term disability, short-term disability, and life — long-term disability was selected. There is an indication next to the remaining two alternatives that they are not applicable. This checklist was not signed by plaintiff. The name of Jack Nelson appears on the document. Nelson was plaintiffs broker.

On April 26, 1994 defendant sent plaintiff, as plan administrator, certificates of coverage for himself and his employee, a summary of benefits, and a variety of forms for claims, new enrollments, etc. These materials were, in effect, the policy. Plaintiffs policy provided long-term disability benefits for plaintiff and all full-time employees who worked a minimum number of hours each week. According to the terms of this policy, defendant could terminate plaintiffs coverage if the number of employees insured was less than two. Plaintiff, although the employer, was counted as an employee of the sole proprietorship for this purpose. At the time plaintiff purchased the policy, he employed one full-time medical assistant. When this assistant left plaintiffs employ in 1999, plaintiff hired a different medical assistant and submitted information to defendant to reflect this change and thereby maintain coverage.

Plaintiff at all times paid the policy premiums for both himself and his employee.

Plaintiff has filed an affidavit stating:

. . . I did not assist in drafting the insurance policy. I did not play any role in placing the insurance policy. The insurance broker handled procurement of the policy, and, thereafter, I received premium bills, for which I personally paid all premiums. At no time have I ever received any compensation from First UNUM in connection with administration of the insurance policy.
Plaintiff also states in his affidavit that he was unaware of the ...

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